Does a skateboarder have to wear a helmet?

By
McGee, Lerer & Associates
|November 25, 2017

California law, specifically Vehicle Code Section 21212, requires that
every person under 18 years of age (a "minor") where a helmet
when skateboarding. There is no helmet requirement for skateboarding adults.

What is the effect if a skateboarding minor is injured in an accident and
was not wearing a helmet? If a minor suffers a head injury in a skateboarding
accident and was not wearing a helmet, then if the minor makes an injury
claim, the defendant will be able to use the minor's failure to wear
a helmet against him. The defendant will argue to the jury that the skateboarder
was "negligent per se," i.e., that the minor violated the law
and that the violation was a substantial factor in causing the minor's
injuries. The jury will then be asked to factor in the skateboarder's
violation of the law in assessing how much money, if any, to award to
the injury victim. The defense may argue that the jury should award nothing
to the skateboarder because a helmet would have prevented any head injury.
The skateboarder's lawyer's job is to lessen the impact of the
helmet law violation by arguing that even if the skateboarder had worn
a helmet, he/she still would have suffered a brain injury. The attorney
for the skateboarder will likely need to bring in an expert to provide
this testimony to the jury.

If a skateboarding minor who was not wearing a helmet does not injure his
head, but suffers other injuries, then his or her failure to wear a helmet
was not a substantial factor in causing his/her injuries, so negligence
per se does not apply. If a helmet would not have prevented the injuries
the minor suffered, then the minor's violation of the helmet law should
not have a substantial impact on the value of the claim. The other side
will try to portray the skateboarder as irresponsible for not wearing
a helmet, but if a helmet would not have prevented the injuries suffered,
there is a strong argument that the minor's helmet-less status is
really irrelevant.

What is the effect if a helmet-less adult suffers a head injury while skateboarding?
Since there is no helmet requirement for adults, the adult was not "negligent
per se." However, the other side will certainly argue to the jury
that a helmet would have prevented the brain injury, and that the jury
should factor that into any award to the injury victim.

Bottom Line for Minors: If a helmet-less minor suffers a head injury while
skateboarding, you will want to hire a lawyer who is experienced in handling
similar cases and who is willing to spend the money to hire an expert
who can explain to the jury that a helmet would not have prevented a head injury.

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